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“Contract law and Tort law are like cheese and biscuits, different but complementary” (Holyoak 1983).
A contract is an agreement between two parties that is legally enforceable. Contract law outlines the duties and responsibilities to one another, what a person can and cannot include in a contract and the remedies for breach of their contractual duties. Elements of a contract are offer, acceptance, intention to create legal relation, consideration, capacity of the party to contract and legality of the arrangement. The laws of tort govern situations where one person has harmed or injured another person. Tort law covers violations that are intentional such as battery claim. It also addresses incidents where the party is held liable even if they did not act intentionally, such as in negligence claims or strict liability claims. Tort laws usually result in the liable party paying the victim monetary compensation for the damages. The four elements of Tort law are duty, breach of duty, causation and injury. In order to claim damages, there must be breach in duty of the defendant to the plaintiff. Contract and Tort law share many similarities. Both Contract and Tort law deals with a duty that has been breached.
In contract law, a duty is breached when one party fails to carry out their duties mentioned in the contract. In this case, contract laws prescribe a suitable remedy for the breach. Most tort violation also involves some form of breach of duty. For example, personal injuries usually occur because the liable person has breached their duty not to harm another person. Damages awards can be obtained in both contract and tort violations. These are monetary payments made by the liable party to the victims in order to make up for any losses that result from their breach of duty. However, there are several fundamental differences between contract and tort laws. The most important difference being the issue of consent. In a contract, the parties must enter into the contract knowingly and without being coerced.
Damages in a contract claim are usually misunderstanding between the parties since they are generally aware of their duties of which they have consented to in the contract. In order for the contract to be valid, each party must consent to the outcome of the contract as stated. In contrast, the interaction in a tort is never based on consent. Torts generally involve an invasion by one party into the safety, health, profit or privacy of the victim. Also if the victim consents to the tortious conduct, it can prevent them from recovering damages. The difference between contract law and tort law in terms of consent is reflected in how the court rewards damages.
In contract law the court seeks to restore the parties to their position before the breach occurred. In tort law the court awards compensation to the victim for the losses incurred. Tort law and Contract law complements each other as the elements of each law can only be appreciated when compared to each other. Tort and contract violation both involves the breach of duty but their elements are different. A contract is only valid where it is offered by an offeror and accepted by an offeree but in Tort law there is no consent to perform a duty. By comparing these two laws, it is easier to identify the elements of both Tort and Contract law.
* Rogers, W.V.H. (1994). The Law Of Tort. Second Edition. London: Sweet & Maxwell.
* Poole, J. (2012). Casebook on Contract Law. 11th Edition. London: Oxford University Press.